Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1866 OF 2016

VOHRA SADIKBHAI RAJAKBHAI & ORS. .....APPELLANT(S)

VERSUS

STATE OF GUJARAT & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The essence of the issue that needs to be decided in the

instant appeal is captured by the appellants by formulating the

following  substantial  question  of  law;  though  the  same  is  not

appropriately framed:

“Whether  gross  negligence  in  not  maintaining particular  level  of  water  in  the  dam  by  the respondents;  that  has  resulted  into  damage  and destruction  to  the  plantation  of  the  appellants, causing loss of livelihood, could be said to be an 'Act of God'?”

2) It  so  happened  that  the  respondents  had  constructed  and

maintained a dam.  60,000 cusecs of water from this dam was

released, which flooded the land of the appellants and destroyed

Civil Appeal No. 1866 of 2016 Page 1 of 25

Page 2

the plantation therein.  As per the respondents, the water had to

be released from the dam as it reached alarming level because of

heavy rains and non-release would have breached the dam.  The

action was, thus, taken in public interest and it was occasioned

because of the rains, which was an act of God.  The appellants,

on the other hand, contend that it was sheer negligence on the

part of the respondents in not maintaining low level of the water

keeping in mind the ensuing monsoon season and, therefore, the

damage which the appellants have suffered has direct nexus or

causal  connection  with  the  aforesaid  act  of  negligence  and  it

cannot  be attributed to the rains.   It  is,  thus,  pleaded that  the

respondents  cannot  term  it  as  an  act  of  God  and  excuse

themselves from the tortious liability.

3) There is hardly any dispute on the factual matrix under which the

aforesaid issue has cropped up for determination.

4) The appellants herein are the owners of land, which is proximate

to the  Mazum dam that has been built over river Mazum.  They

had grown hybrid berry trees over the said land which, they claim,

belong to their ancestors and were earning their livelihood from

the fruits of the said trees.  Respondents have built a dam over

River Mazum in the nearby area for supplying water for irrigational

Civil Appeal No. 1866 of 2016 Page 2 of 25

Page 3

purpose and thereby to earn revenue.  In June 1997, there were

heavy rains in the said area which resulted in overflowing of the

water in the dam.  In order to save the dam, the respondents

released nearly 60,000 cusecs of water.  This release of water

flooded the fields of the appellants.  With the submerging of the

land  of  the  appellants,  all  the  trees  standing  on  the  land  got

uprooted resulting in  destroying  the whole  cultivation of  hybrid

berries.   According  to  the  appellants,  there  entire  8  bighas  of

agricultural  land became part  of  the river  Mazum and the only

source of livelihood was lost.

5) The appellants claimed compensation for the damage done to the

trees  standing  on  the  said  land  by  serving  legal  notice  to  the

respondents under  Section 80 of  the Code of  Civil  Procedure,

1908.  Damages and compensation to the extent of  21,50,000₹

was claimed alleging that it  happened due to gross negligence

and lack of administration on the part of the respondents.  The

case set up in the notice was that the respondents had stored

more than the retention capacity of the water in the dam during

the month of June 1997 despite knowing fully well that during the

ensuing rainy season there would be more flow of water in the

dam.  This act on the part of the respondents was termed as an

Civil Appeal No. 1866 of 2016 Page 3 of 25

Page 4

act of gross negligence and lack of good administration.  No reply

to  the  notice  was given  by  the  respondents,  which  forced  the

appellants to file a civil suit in April 1998 against the respondents

for a compensation of 21,50,000.₹

6) The  trial  court  appointed  Court  Commissioners  to  verify  the

position of the agricultural land of the appellants and report the

ground situation to the Court.  The team of Court Commissioners,

known as panchas, who visited the site, submitted their report for

inspection confirming the submergence of the agricultural fields of

the appellants.  They also reported that due to this submergence,

the trees of the appellants grown on the said land were uprooted

and were lying amidst  the mud and sand brought  by the river

water.  In this report, they also mentioned that as many as 1500

boar  trees  were  uprooted  and  washed  away  due  to  the  said

floods.  Several photographs were also annexed with the report in

respect  of  the  aforesaid  inspection  carried  out  by  the  Court

Commissioners.

7) Respondents contested the suit  inter alia  on the ground that the

place where the said dam, known as Mazum dam Water Scheme,

is constructed was situated nearby the village Volva of Modasa,

which is 33 kms. away from the place of the appellants.  It was

Civil Appeal No. 1866 of 2016 Page 4 of 25

Page 5

further stated that due to heavy rains the water level of the dam

had gone abnormally high and, therefore, there was no option but

to release further water flow from the dam in the river to control

the floods.  For this purpose, advance information was given to

the  offices  such  as  the  Head  of  Departments,  Revenue

Authorities,  etc.   It  was  also  stated  that  during  the  monsoon

season at what level the capacity of the water is to be filled in the

Mazum dam is decided in advance.  But in the eventuality of the

heavy rain fall at the upper side areas, to maintain the level of the

water dam, the additional water received from the upper areas are

released into the river by opening the doors of the dam so that

any damage to the dam can be prevented.  This decision of how

much water  has  to  be  released into  the  river  is  taken  by  the

Competent  Officer.   On  that  basis,  it  was  pleaded  that  no

compensation was payable as the respondents  were forced to

take the decision to avert natural calamity and this decision was

occasioned because of excessive rain, which was an act of God.

8) On the basis of pleadings, following issues were framed by the

trial court:

“(i)  Whether plaintiff proves the suit claim?

(ii)  Whether plaintiffs are entitled to get the interest on suit claim?  If yes, at what rate?

Civil Appeal No. 1866 of 2016 Page 5 of 25

Page 6

(iii)  Whether plaintiffs prove that they have given legal notice to the defendants?

(iv)  What order and decree?”

9) Though  Issue  No.3  was  decided  in  favour  of  the  appellants

holding that  a proper notice was served upon the respondents

under  Section 80 of  the Code of  Civil  Procedure,  1908 before

filing the suit, insofar as Issue No.1 is concerned, the findings of

the trial court went against the appellants.  The trial court held that

the  respondents  were  forced  to  release  the  water  due  to  the

heavy rains.  The trial court also found that land of the appellants

is situated adjacent to the river bank and, therefore, due to heavy

rain, the river could have overflown resulting in entering of  the

water into the fields of the appellants in any case. It further held

that action of the respondents in releasing the water from dam

was a prudent action keeping in view that minimum damage is

caused to the public at large because of the heavy rains, which is

dependent upon the nature.  The trial court further held that the

appellants had not given specific evidence about the actual loss,

i.e. how many trees the appellants were having and how many

out of those trees were washed away in the water.  Likewise, the

appellants had also failed to produce the evidence with regard to

the  price  of  the  produce  allegedly  destroyed  by  obtaining  the

Civil Appeal No. 1866 of 2016 Page 6 of 25

Page 7

information in this regard from the Agricultural Produce Marketing

Committee.  Though the appellants had examined one witness,

he  had  given  only  oral  testimony  without  any  documentary

support.  The trial court also concluded that the appellants could

not  prove that  they had suffered damage and loss due to  the

negligence on the part of the respondents.  On the basis of the

aforesaid findings, the suit of the appellants was dismissed.  The

appellants preferred an appeal against the said judgment, which

has also been dismissed by the High Court vide judgment dated

June 27, 2011, which is impugned in the instant appeal.

10) A perusal of the judgment in appeal would reflect that since the

water had to be released from the dam, as a result of excessive

rain, in order to see that less damage is caused, it was a force

majeure  circumstance  and,  therefore,  the  appellants  were  not

entitled to any compensation.

11) We may state at the outset that there is no dispute on basic facts.

It  is admitted by the respondents that a decision was taken to

release the water from the dam.  It has also come on record that

the respondents had decided to release 60,000 cusecs of water.

Because of the release of this water, land of the appellants with

standing  fruit  bearing  trees  got  submerged.   It  resulted  in

Civil Appeal No. 1866 of 2016 Page 7 of 25

Page 8

uprooting and destroying many trees.  The  panchas,  who were

appointed by the Court to visit the site have submitted their report

to this effect stating that almost 1500 trees were damaged.  On

these facts, two aspects need consideration, which are:

(a)  Whether the act of releasing the water from the dam would amount

to negligence on the part of the respondents or it was inevitable

due to heavy rains and is to be treated as an 'act of God'?

(b)  If the answer to the aforesaid question is in the affirmative, whether

the appellants would be entitled to some compensation even in

the absence of proof of actual/exact damage caused?

12) We may state at the outset that neither the appellants prosecuted

their case properly nor the respondents contested it appropriately.

No doubt, the appellants submitted that there was negligence on

the part of the respondents in not ensuring that the water level is

maintained  at  sufficiently  low  level  to  meet  the  exigency  of

accumulation of  further  water  because of  the ensuing rains as

they  have  also  pleaded  that  the  plantations  in  their  fields  got

damaged  because  of  the  release  of  water  by  the  appellants.

However, they have not led any specific evidence to show the

loss.  It has also not come on record as to at what level the water

was  in  the  dam  before  the  rains.   On  the  other  hand,  the

Civil Appeal No. 1866 of 2016 Page 8 of 25

Page 9

respondents took the plea that the water level in the dam rose

because of torrential rains which has resulted in overflowing of the

water in the dam and the decision to release the water became

necessary in the larger public interest.  However, the respondents

have  also  not  properly  controverted  the  allegations  of  the

appellants that water was not maintained at an appropriate level

to take care of ensuing monsoons.  They have also not supported

their plea by leading any evidence to the effect that had the water

been not released it would have breached the dam and that act

would have caused more public  harm.  The courts  below also

took a myopic view by simply going by the fact that the action on

the part of the respondents in releasing the water from the dam

was necessitated because of heavy rains and those heavy rains

are an 'act of God'.

13) No doubt, both the parties agree that the overflowing of the dam

was caused due to heavy rains.  However, the question is as to

whether the respondents were supposed to take reasonable care

in this behalf by keeping the level of water in the dam sufficiently

low in order to  meet  the exigency of  ensuing monsoon?  This

would have depended upon another factor, namely, whether the

rains  in  the  said  season  were  much  more  than  normal  and

Civil Appeal No. 1866 of 2016 Page 9 of 25

Page 10

beyond the expected level or it was known before hand, as per

the prediction of the Meteorological Department that there would

be heavy rains?  It is only on that basis one can find out as to

whether there was negligence on the part of the respondents in

keeping the particular level of water in the dam by not taking into

consideration  the  possible  flow  of  the  water  as  a  result  of

expected rains.

14) The admitted facts on record are that the damage to the trees and

plantation of the appellants is caused due to the release of water

from the dam by the respondents.  A specific plea is raised that

the respondents had stored more than the retention capacity of

the  water  in  the  dam during  the  month  of  June  1997  despite

knowing fully well that during the ensuing monsoon season there

would be more flow of water in the dam.

15) Since the dam is constructed and maintained by the respondents

and the appellants suffered losses as a result of release of water

from the said dam, onus was on the respondents to prove that

they had taken proper  care in  maintaining appropriate  level  of

water in the dam taking into account the provision for the water

that can get accumulated in the said dam due to the forthcoming

rainy season.   The respondents are the owners of the dam in

Civil Appeal No. 1866 of 2016 Page 10 of 25

Page 11

question.   They are expected to keep the said dam in such a

condition which avoids any loss or damage of any nature to the

neighbours or passers by.  The doctrine of strict liability, which has

its origin in the case of Rylands v. Fletcher1, will have application

in the instant case.  Following observations of Blackburn, J. state

the principle of strict liability:

“The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely  to do mischief  if  it  escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.”

The learned Judge went further to expound the aforesaid principle

in the following manner:

“The  general  rule  as  above  stated  seems  on principle just.  The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or  whose mine  is  flooded by  the  water  from his neighbour's reservoir, or whose cellar is invaded by the  filth  of  his  neighbour's  privy,  or  whose habitation  is  made  unhealthy  by  the  fumes  and noisome vapours of his neighbour's alkali  work is damnified  without  any  fault  of  his  own;  and  it seems but reasonable and just that the neighbour, who has brought  something on his  own property which was not naturally there, harmless to other so long as it is confined to his own property, but which he  knows  to  be  mischievous  if  it  gets  on  his neighbour's, should be obliged to make good the damage which ensues if  he does not succeed in confining it to his own property.  But for his act in bringing it  there no mischief  could have accrued, and it  seems but  just  that  he should  at  his  peril keep it  there so that  no mischief  may accrue,  or

1 (1868) LR 3 HL 330

Civil Appeal No. 1866 of 2016 Page 11 of 25

Page 12

answer  for  the  natural  and  anticipated consequences.”

16) Lord Cairns, while agreeing with the aforesaid view of Blackburn,

J., clarified that this rule shall apply where there was non-natural

user  of  land.   This  concept  of  non-natural  use  of  land  was

succinctly  brought  out  by  the  Privy  Council  in  Rickards  v.

Lothian2, as is clear from the following formulation:

“It is not every use to which land is put that brings into play this principle.  It must be some special use bringing  with  it  increased  danger  to  others,  and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.”

17) In Read v. J. Lyons & Co.3, another qualification to the aforesaid

rule  was added,  namely, the  non-natural  use  by  the  offending

party should result  in 'escape' of the thing from his land which

causes damage and so in the absence of 'escape', the rule has

no application.

18) The aforesaid principle has withstood the test of time as it is not

only followed by the courts in England in subsequent judgments

repeatedly,  even  this  Court  has  adopted  in  certain  cases  and

extended to cover accidents arising out of use of motor vehicles

on road. {See – State of Punjab v. Modern Cultivators4; Indian 2 (1913) AC 263 3 (1947) AC 156 (HL) 4 AIR 1965 SC 17

Civil Appeal No. 1866 of 2016 Page 12 of 25

Page 13

Council  for  Enviro  Legal  Action  v.  Union  of  India5;  and

Kusuma Begum (Smt.) v. The New India Assurance Co. Ltd.6}.

19) In Modern Cultivators' case referred to above, the damage was

caused by overflowing of water from a breach in a canal.  This

Court held that use of land for construction of a canal system is

an ordinary use and not a non-natural use.  The Court attributed

negligence on the part of the authorities and awarded damages to

the plaintiff  therein on the said findings of  negligence.   In  this

case, thus,  the damages were awarded even when the use of

land  for  construction  of  a  canal  system  was  found  to  be  an

ordinary use.

20) In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat7, this Court

explained the ratio of Modern Cultivators in scholarly manner, as

follows:

“12.  Was the ratio in Rylands v. Fletcher modified by this Court in Modern Cultivators?  If so to what extent?  What  is  its  effect  on  facts  of  this  case? That was a case where the land of the plaintiff used for silting operation was flooded due to escape of canal  water.   It  was  claimed  that  in  absence  of proof  of  negligence the suit  was not  liable  to  be decreed.  The Court did not apply the principle laid down in Rylands v. Fletcher:

“That  any  occupier  of  land  who  brings  or keeps upon it anything likely to do damage if it

5 (1996) 2 Scale 44 6 JT 2001 (1) SC 37 7 (1994) 4 SCC 1

Civil Appeal No. 1866 of 2016 Page 13 of 25

Page 14

escapes  is  bound  at  his  peril  to  prevent  its escape  and  is  liable  for  all  the  direct consequences  of  its  escape,  even if  he  has been  guilty  of  no  negligence....a  principle derivatively  created  from  the  rule  of  'strict liability'....as canal systems are essential to the life of a nation and land that is used as canals is  subjected  to  an  ordinary  use  and  not  to unnatural use.”

The  Court  preferred  to  rely  on  the  principle developed  by  American  Courts  on  canal  breaks and applied the principle of 'fault liability' which may even be inferred from circumstances.  The view of the  High  Court,  therefore,  that  the  rule  of  strict liability  was  modified  by  this  Court  in  Modern Cultivators does  not  appear  to  be  correct. 'Absolute liability', or 'strict liability' and 'fault liability' do not go together.”

21) In  Jay Laxmi's case, damage was caused by overflow of water

from a reclamation bundh constructed by the State of Gujarat for

reclamation of vast area of land from saltish water of sea.  In this

case, this Court held the Government responsible as the said act

was treated as violation of public duty and negligence which lay in

defective  planning  and  construction  of  the  bundh.   On  that

premise,  damages  were  awarded.   The  Court  explained  the

jurisprudence  of  liability  in  torts  and  also  the  two  principles,

namely,  'strict  liability'  and  'fault  liability',  in  paragraph  8  and

thereafter  enumerated  other  circumstances  which  may  fall

in-between 'strict liability' and 'fault liability', in paragraph 9.  We

would  like  to  quote  hereinbelow  these  two  paragaphs  for  our

Civil Appeal No. 1866 of 2016 Page 14 of 25

Page 15

benefit:

“8.  Winfield  has defined tortious law arising from breach of a duty primarily fixed by law; this duty is towards  persons  generally  and  its  breach  is redressable by an action for unliquidated damages. In general, torts consist of some act done without just cause or excuse.

“The  law  of  torts  exists  for  the  purpose  of preventing  men  from  hurting  one  another whether  in  respect  of  their  property,  their presence, their reputations or anything which is theirs.”

Injury and damage are two basic ingredients of tort. Although these may be found in contract  as well but  the  violations  which  may  result  in  tortious liability are breach of duty primarily fixed by the law while  in  contract  they  are  fixed  by  the  parties themselves.  Further  in  tort  the  duty  is  towards persons generally. In contract it is towards specific person or persons. An action for tort  is usually a claim  for  pecuniary  compensation  in  respect  of damages suffered as a result of the invasion of a legally protected interest. But law of torts being a developing law its frontiers are incapable of being strictly barricaded. Liability in tort which in course of time has become known as ‘strict liability’, ‘absolute liability’, ‘fault liability’ have all gradually grown and with  passage  of  time  have  become  firmly entrenched.  ‘Absolute  liability’  or  “special  use bringing  with  it  increased  dangers  to  others” (Rylands  v.  Fletcher  [LR (1868) 3 HL 330 : 37 LJ Ex 161 : [1861-73] All ER Rep 1] ) and ‘fault liability’ are different forms which give rise to action in torts. The distance (sic difference) between ‘strict liability’ and  ‘fault  liability’  arises  from  presence  and absence of mental element. A breach of legal duty wilfully,  or  deliberately  or  even  maliciously  is negligence emanating from fault liability but injury or damage resulting without any intention yet due to lack of foresight etc. is strict liability. Since duty is the  primary  yardstick  to  determine  the  tortious liability  its  ambit  keeps  on  widening  on  the touchstone of fairness, practicality of the situation etc.  In  Donoghue  v.  Stevenson[(1932)  AC  562  :

Civil Appeal No. 1866 of 2016 Page 15 of 25

Page 16

1932 All ER Rep 1] a manufacturer was held to be liable to ultimate consumer on the principle of duty to care. In Anns v. Merton London Borough Council [(1978) AC 728 : (1977) 2 All ER 492] it was, rightly, observed:

“[T]he  broad  general  principle  of  liability  for foreseeable  damage  is  so  widely  applicable that the function of the duty of care is not so much  to  identify  cases  where  liability  is imposed as to identify those where it is not,….”

Truly  speaking entire law of  torts is founded and structured on morality  that  no one has a right  to injure  or  harm  others  intentionally  or  even innocently. Therefore, it would be primitive to class strictly  or  close  finality  (sic  finally)  the  ever- expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by courts is more conducive.

9.  In between strict liability and fault liability there may be numerous circumstances in which one may be entitled to sue for damages. And it may be partly one  or  the  other  or  may  be  both.  In  a  welfare society construction of dam or bundh for the sake of community is essential function and use of land or accumulation of water for the benefit of society cannot  be  non-natural  user.  But  that  cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and  result  in  damage,  loss  or  injury.  What  is fundamental is injury and not the manner in which it has been caused. ‘Strict liability’, ‘absolute liability’, ‘fault  liability’  and  ‘neighbour  proximity’  are  all refinements  and  development  of  law  by  English Courts for the benefit of society and the common man.  Once  the  occasion  for  loss  or  damage  is failure  of  duty,  general  or  specific,  the  cause  of action  under  tort  arises.  It  may  be  due  to negligence, nuisance, trespass, inevitable mistake etc. It  may be even otherwise. In a developed or developing society  the concept  of  duty  keeps on changing and may extend to even such matters as was highlighted in Donoghue v. Stevenson [(1932) AC 562 : 1932 All ER Rep 1] where a manufacturer

Civil Appeal No. 1866 of 2016 Page 16 of 25

Page 17

was held responsible for injury to a consumer. They may  individually  or  even  collectively  give  rise  to tortious liability. Since the appellant  suffered loss on  facts  found  due  to  action  of  respondent's officers both at the stage of construction and failure to take steps even at the last moment it was liable to be compensated.”

The Court, thereafter, explained that in order to become a claim

as  actionable  claim,  it  is  necessary  to  determine  that  the

defendant was guilty of negligence.

22) There are two exceptions to the aforesaid rule of strict  liability,

which  were  recognized  in  Rylands  v.  Fletcher  itself,  viz.:  (a)

where it can be shown that the escape was owing to the plaintiff's

default, or (b) the escape was the consequence of  vis major  or

the act of God.  An act of God is that which is a direct, violent,

sudden and irresistible act of nature as could not, by any amount

of ability, have been foreseen, or if  foreseen, could not by any

amount of human care and skill have been resisted.  Generally,

those  acts  which  are  occasioned  by  the  elementary  forces  of

nature, unconnected with the agency of man or other cause will

come under the category of acts of God.  Examples are: storm,

tempest,  lightning,  extraordinary  fall  of  rain,  extraordinary  high

tide, extraordinary severe frost, or a tidal bore which sweeps a

ship  in  mid-water.   What  is  important  here  is  that  it  is  not

necessary that it should be unique or that it should happen for the

Civil Appeal No. 1866 of 2016 Page 17 of 25

Page 18

first time.  It is enough that it is extraordinary and such as could

not reasonably be anticipated.  We would like to discuss a few

cases having bearing on this issue with which we are confronted

in the instant appeal.

23) In  Nicholas  v.  Marsland8,  the  respondent  owned  a  series  of

artificial lakes on his land.  In the construction and maintenance of

these lakes,  there had been negligence.  However, owing to a

most unusual fall of rain, which was so abnormal that could not

have been reasonably anticipated, some of the reservoirs burst

and carried away four country bridges.  The respondent was held

not liable on the premise that the water escaped by the act of

God.

24) The  aforesaid  judgment  in  Nicholas's  case  was,  however,

criticized  by  the  House  of  Lords  in  Greenock  Corporation  v.

Caledonian Railway9.  In that case, the Corporation obstructed

and altered the course of  a stream by constructing a concrete

paddling  pool  for  children.   Due  to  a  rainfall  of  extraordinary

violence,  a  great  volume of  water  which  would  normally  have

been carried off by the stream overflowed the pad and caused

damage to plaintiff's property.  The House of Lords held that the

8 (1875) LR 10 Ex.255 9 (1917) AC 556 (HL)

Civil Appeal No. 1866 of 2016 Page 18 of 25

Page 19

rainfall was not an act of God and the Corporation was liable to

pay damages as it was its duty 'so to work as to make proprietors

or occupiers on a lower level  as secure against  injury as they

would have been had nature not been interfered with”.

25) Such  a  situation  came  up  before  this  Court  as  well  in  S.

Vedantacharya  &  Anr.  v.  Highways  Department  of  South

Arcot & Ors.10.  In this case, this Court held that before heavy

rain can be accepted as a defence for the collapse of a culvert,

the defendant must indicate what anticipatory prevention action

was taken.  We would like to quote the following passage from the

said judgment:

“State  Government  erected  a  reservoir  adjoining the plaintiff's land in order to provide drinking water facilities  to  a  village  in  the  State.   The  State acquired a part of the plaintiff's land for the purpose of constructing a channel for carrying the overflow of water from the reservoir to a Nalla which was at a distance of about 1500 feet from the waste-weir of  the  reservoir.   This  channel  was  however  not constructed except to the extent of 250 feet on the side of the  Nalla.   Due to very heavy rainfall  the water  from  the  reservoir  overflowed  into  the waste-weir and thereafter flowed over the plaintiff's land, causing considerable damage to the land and the crops standing thereon.  In a suit by the plaintiff for  damages  they  alleged  that  due  to  the negligence  of  the  State  in  not  taking  proper precautions to guard against the overflow of water they had sustained the loss.  The State  inter alia contended  that  the  loss  was  due  to  heavy  rain which was an act of God and therefore they were not  liable and further that  the construction of  the

10 (1987) 3 SCC 400

Civil Appeal No. 1866 of 2016 Page 19 of 25

Page 20

reservoir was an act of the State in the sovereign capacity  and,  therefore,  it  was  not  liable  for  the tortious or  negligent  acts of  its  servants.   It  was held  that  the  fact  that  the  danger  materialised subsequently by an act  of God was not a matter which absolved the State  from its  liability  for  the earlier negligence in that no proper channel for the flow or overflow of water from the waster-weir was constructed by it in time; that the act of the State in constructing the reservoir for the supply of drinking water to its citizens at best could be considered a welfare  act  and  not  an  act  in  its  capacity  as  a sovereign; and that, therefore, the State was liable in negligence for the loss caused to the plaintiff.”

26) In  nutshell,  what  needs  to  be  examined  is  as  to  whether  the

damage to the property of the appellant herein was the result of

an inevitable accident or  unavoidable accident which could not

possibly be prevented by the exercise of ordinary care, caution

and skill,  i.e.  it  was an accident physically unavoidable.  While

examining this issue, we have to keep in mind that the onus was

on the respondents to satisfy the aforesaid requirements.

27) Undoubtedly, it has come on record that the overflow of dam was

occasioned by torrential and heavy rains.  However, as pointed

out above, the appellants specifically pleaded that the respondent

authorities did not keep the level of water in the dam sufficiently

low to take care of the ensuing monsoon rains.  They have, thus,

set up the case that there was a negligence on the part of the

respondents  in  not  taking  care  of  the  forthcoming  monsoon

Civil Appeal No. 1866 of 2016 Page 20 of 25

Page 21

season and keeping the water level in the dam at sufficiently low

level to absorb the rainfall which was going to rise the water level

in the dam.

28) The respondents have not refuted the aforesaid averment of the

appellants.   The  only  defence  put  up  by  them  was  that  the

overflow of the water in the dam was occasioned by the rains in

the monsoon season which compelled the authorities to release

the  water  from  the  dam  in  larger  public  interest.   In  such  a

scenario, it was incumbent upon the respondents to demonstrate,

by adequate evidence,  that  the water  in  the dam was kept  at

reasonable and proper level to take care of normal rains; the rains

in the said monsoon season were more than the ordinary rains

which could not  be foreseen;  and that  the public  purpose was

served in taking the decision to release the water which prevented

larger catastrophe. Merely by saying that the level of water in the

dam increased because of monsoon rains and that the water was

released in public interest cannot be treated as discharging the

burden on the part of the respondents in warding off the allegation

of  negligence.   It  is  a  matter  of  common knowledge that  with

advanced  technology  available  with  the  Meteorological

Department  in  the  form  of  satellite  signals  etc,  there  is  a

Civil Appeal No. 1866 of 2016 Page 21 of 25

Page 22

possibility  of  precise  prediction  of  the  extant  of  rainfall  in  the

monsoon season.  In view of the principle laid down in Rylands v.

Fletcher,  onus  was  on  the  respondents  to  discharge  such  a

burden, and it has miserably failed to discharge the same.  On

that basis, we are constrained to hold that there is a negligence

on the part of the respondents which caused damage to the fields

of the appellants.

29) This brings us to the question of quantum of damages.  No doubt,

actual/exact proof of damage is not given by the appellants.  At

the same time, we find that the trial court had appointed Court

Commissioners to verify the position of agricultural lands of the

appellants.   The  said  Court  Commissioners,  also  known  as

panchas,  had  visited  the  site  and  submitted  their  report  for

inspection confirming the loss suffered by the appellants due to

submergence of the agricultural fields of the appellants.  In this

report, they specifically pointed out that as many as 1500 boar

trees were uprooted and washed away as a result of the release

of water from the dam which flooded the fields of the appellants.

Several photographs were also annexed along with the report to

support the aforesaid conclusion.  This kind of evidence, which

went unrebutted, proves that the appellants have, in fact, suffered

Civil Appeal No. 1866 of 2016 Page 22 of 25

Page 23

damages.  No doubt, the appellants have not led any evidence to

show actual cost of each tree, in order to arrive at the precise

quantum of damages.  However, even in the absence of such an

evidence showing exact loss suffered, the appellants would still

be entitled to reasonable compensation once factum of suffering

loss stands proved.   Where a wrong has been committed,  the

wrong-doer  must  suffer  from  the  impossibility  of  accurately

ascertaining the amount of damages.  Likewise, the party claiming

compensation must give the best evidence to prove damages.  In

the instant case, we find that the loss is not only on account of

rain, though a part thereof can be attributed to the nature, but also

due to the negligence on the part of the respondent authorities in

not  taking  due  precautions  in  time  which  could  have  avoided

some loss/damage, if not entirely.  If damage has resulted from

two or three causes, namely, from an act of God as well  as a

negligent  act  of  a  party,  the  award  of  damages  can  be

apportioned to compensate only the injury that can be attributed

to the negligent act of the respondents {See  Workman  v.  G.N.

Ry. Co.11}

30) The appellants claimed damages to the tune of  ₹21,50,000, for

which no specific proof/evidence is given.  At the same time, we

11 (1863) 32 LJQB 279

Civil Appeal No. 1866 of 2016 Page 23 of 25

Page 24

find that one Mohemmed Ikbal Mohemmedalam Galivala, who is

an  agriculturist,  had  appeared  as  the  plaintiffs'  witness  and

deposed that he was having the agriculture experience for the last

20 years, particularly experience of cultivation of boar as well as

its profit and income.  He  has given figures of losses which the

appellants had to suffer due to damage of plantation and loss of

income, etc. thereby trying to justify the claim of damages made

by the  appellants,  but  those  figures are  not  supported  by any

evidence.   However, it is not in dispute that loss has occurred

and, therefore, a reasonable compensation can still be awarded.

Exercising our power under Article 142 of the Constitution, we are

of  the  opinion  that  ends  of  justice  would  be  met  in  awarding

damages to the tune of 5₹ ,00,000.  We have arrived at the above

figure  keeping  in  view  the  statement  of  Mohemmed  Ikbal

Mohemmedalam Galivala, witness who appeared on behalf of the

appellants, though not accepting the figures given by him in its

entirety,  and  the  cross-examination  of  the  respondents  of  this

witness on this aspect.  The appellants shall also be entitled to

interest from the date of judgment of the trial court, i.e. December

24, 2010 at the rate of 9% per annum and also the cost of the

present appeal.

Civil Appeal No. 1866 of 2016 Page 24 of 25

Page 25

31) The appeal is allowed in the aforesaid terms.  Decree be drawn

accordingly.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; MAY 10, 2016.

Civil Appeal No. 1866 of 2016 Page 25 of 25